State of Our Unions 2014

In the states marriage equality took a bronze medal in 2013, is slated for silver in 2014-and in 2015 may grab the gold.

photo by In Sappho We Trust/Wikimedia Commons

Sandy Stier (l) and Kris Perry (R) last summer at San Francisco Pride

In 2013, LGBT people made more progress on human and civil rights issues than ever before, especially regarding marriage.

In numerous examples, society learned that immigration, education, employment, children and taxation are all deeply intertwined with each other—and with marriage—in the 21st century. True stories about real people showed that federally recognized marriage rights are vital for anyone whose spouse is barred at the border, that LGBT people benefit civilian employers just as well as they do the armed forces, and that LGBT taxpayers are as entitled to use 1,138 federal programs for legally married couples as everyone else.

The remaining conundrums confronting LGBT people were often illustrated by what happened to military personnel with same-gender spouses. The repeal of the 19-year old "Don’t Ask, Don’t Tell" policy proved a smashing success, and did no harm to recruiting, retention, morale or effectiveness, but it also exposed hypocritical, unthinkable contradictions for spouses. Everyone could serve, but not everyone was treated equally. As the Pentagon, Veterans Administration, Justice Department and White House gradually resolved each type of injustice, more Americans came to understand that the victims were really just average people, but struggling under harsh, illogical rules that were unimaginable to everyone else, and that benefitted no one.

While the year 2013 saw notable advances in areas such as employment and immigration, the most progress—by far—was for marriage equality.

Because it demeaned and deprived legally married same-gender couples and their children, the key section of the Defense of Marriage Act was overturned by the U.S. Supreme Court. That ruling not only made 1,138 federal marriage-related programs available for the first time ever to all legally married same-gender couples, but it also confirmed a legal rationale that now affects every other marriage case.

It took 20 years to adopt full, state-level marriage equality in the first nine jurisdictions (Connecticut, the District of Columbia, Iowa, Massachusetts, Maine, New Hampshire, New York, Vermont and Washington), but the next nine (California, Delaware, Hawaii, Illinois, Maryland, Minnesota, New Jersey, New Mexico and Rhode Island) took only one year: 2013. These first 18 adopted equality using a mix of the three ways that laws change in America: new statutes, court orders and ballot measures. In each of them, the path toward justice was unique; no two got there the same way. Calendar year 2013 ended with 38 percent of the American population living in 18 full-equality jurisdictions, which is expected to reach 67 percent in 30 jurisdictions by the end of 2015.

In the categories for marriage-related news—laws, litigation, campaigns, polls—2013 racked up 631 news events, averaging more than 2.5 items every single workday. Those 631 events from 2013 also are an excellent preview to major events in 2014.

The majority of states have some mix of lawmaking, campaigning or litigation in progress. Most of the 11 U.S. Circuit Courts of Appeal, as well as the U.S. Supreme Court, will be hearing one or more marriage cases this year or next.

Here’s where the activity is hottest right now, and for the rest of 2014:

AT THE NATIONAL LEVEL

Public opinion—During 2013, national polls showed support for same-sex civil marriage rising quickly—and in every major demographic category—from just above 50 percent overall to nearly 60 percent. In 2014, that trend will continue.

Congress—During 2013, Democrats controlled the Senate and Republicans controlled the House, resulting in Congress’ most unproductive year ever. In 2014, this divided Congress will probably not act on LGBT rights legislation such as ENDA (Employment Non-Discrimination Act).

Supreme Court—By its actions in 2013, the U.S. Supreme Court strengthened the rationale behind most state and federal marriage cases, and increased the number of them, making more high court rulings likely in 2015.

White House—In 2013, federal agencies began swiftly implementing the U.S. Supreme Court’s decision overturning of Section 3 in the Defense of Marriage Act. The ruling extended federal benefits to all legally married spouses nationwide, usually even to same-gender couples who got legally married but who don’t reside in an equal marriage state.

In September, the U.S. Labor Department announced that legally married same-gender couples have all the same federal rights (pensions, retirement plans, health insurance, etc.) as other married couples, regardless of their state of residence. And when same-sex Army National Guard spouses were denied benefits in nine states (Florida, Georgia, Indiana, Louisiana, Mississippi, Oklahoma, South Carolina, Texas and West Virginia), the Pentagon made sure that all armed forces personnel get treated fairly. In 2014, the White House will continue implementing measures that promote and protect equal marriage.

IN THE STATES

Nevada—This federal case was appealed by Lambda Legal to the 9th Circuit U.S. Court of Appeals in November 2012, after the judge wrote that same-gender couples don’t have or raise children; fewer mixed-gender couples marry when more same-gender couples marry; and LGBT people don’t need any more political power. For the first time, 15 equal marriage jurisdictions jointly filed a brief urging the appeals court to strike down Nevada’s marriage ban as unconstitutional. Nevada’s main argument still is that same-gender marriage should be banned because mixed-gender marriage should be promoted. In every other case where this premise was tried, it failed.

Utah and Oklahoma—Within weeks of each other, two federal judges ruled that state marriage bans in Utah and Oklahoma violate the U.S. Constitution. The Utah case is now in its 11th month, whereas the Oklahoma case is now in its 11th year. Both are slated to be decided by the 10th Circuit U.S. Court of Appeals in early 2014.

Indiana—The Republican-controlled legislature has long vowed to amend the state constitution and 614 state laws to permanently ban same-sex civil marriage, domestic partnership and civil unions. But voters, high profile mayors and major employers are souring on the idea much faster than lawmakers realize. Lots of time, energy and media dollars are being spent in fights over whether marriage should reach the ballot—and how voters should vote.

Oregon—In 2013, enough voters petitioned to put marriage equality on the November 2014 ballot and business support is strong. Local opponents know that marriage equality is inevitable, so they gave up that fight, and now are trying to legalize religion-based discrimination against same-sex couples. But Oregon could be the first state to repeal its constitutional ban against equal marriage, so national anti-LGBT groups are gearing up.
Ohio—In 2013, a gay male couple, Jim Obergefell and John Arthur—the latter of whom was terminally ill—filed a federal lawsuit to have their Maryland marriage recognized by Ohio before Arthur passed away. The judge ruled that Ohio’s marriage ban is unconstitutional and the state appealed to the 6th Circuit U.S. Court of Appeals.

Pennsylvania—In July 2013, 23 people filed a federal lawsuit challenging Pennsylvania’s marriage ban. In September 2013, another couple filed another federal lawsuit to force Pennsylvania to recognize their 2005 Massachusetts marriage, and asked the court to skip the trial and issue a summary judgment. In both cases, whichever side loses will appeal to the 3rd Circuit U.S. Court of Appeals. In Pennsylvania’s state courts, another six marriage cases are brewing.

Michigan—In January 2012, a lesbian couple began a federal lawsuit that later expanded to challenge the Michigan ban on marriage, civil union, domestic partnership and joint adoption. The trial starts February 25, featuring Michigan’s expert witness, associate sociology professor Mark Regnerus. His research falsely claims that children of same-gender parents are less successful than children of mixed-gender parents; lesbian parents produce violent boys; and children raised by same-sex couples are 35 percent less likely to progress normally in school.

Texas—Of the roughly 11 marriage cases now in Texas, nine of them began in 2013. They are split about evenly between the state and the federal courts. Most have individual plaintiffs, but two are class actions. They cover a wide range of same-sex civil marriage issues: licensing, custody, divorce, survivor benefits, military spouses, worker spouse benefits and Texas recognition of marriages performed elsewhere.

Virginia—The summer of 2013 saw the start of two noteworthy federal cases on marriage rights in Virginia. The court put the first case on an expedited schedule, pleasing the plaintiffs’ lawyers, David Boies and Ted Olson, who argued against California’s Proposition 8 at the U.S. Supreme Court last June. The second case includes lawyers from ACLU and Lambda Legal, who have asked the court to skip their trial and issue a decision. Both cases will benefit from the state attorney general’s decision to not defend Virginia’s ban and to agree with the plaintiffs.

West Virginia—In October 2013, Lambda Legal and Fairness West Virginia filed a federal lawsuit for three couples seeking marriage rights. On December 31, the plaintiffs asked the judge to skip the trial and issue a ruling.

Elsewhere—A major state lawsuit is in progress in Montana, and major federal lawsuits also are underway in Arkansas, Idaho and Florida.

The year 2013 was the biggest in LGBT rights so far. Now there is legislation pending in most states, with at least 13 state campaigns and about 70 state or federal lawsuits. This year promises more success—and 2015 will likely top them both.